Judge sides with SD on medical marijuana

San Diego can refuse to issue business tax certificate

San Diego  The city of San Diego can refuse to issue a certain type of business license to medical marijuana distributors, a judge has ruled.

Superior Court Judge Randa Trapp ruled the city cannot be required to take actions that amount to an illegal act.

Wisdom Organics of Lemon Grove is allowed to deliver medical marijuana under state law, but use and distribution of the drug remains illegal under federal law, Trapp wrote in the ruling Feb. 3.

“Further, there is evidence presented that the U.S. Attorney is now putting marijuana dispensaries on notice that they are violating federal law and that federal law takes precedence over state law,” Trapp wrote. “Consequently, issuing a business tax certificate under these circumstances would tend to aid in an unlawful purpose.”

A lawyer for the nonprofit organization did not return a message left at his office. It’s unclear what affect the ruling will have on delivery services because unlike storefront dispensaries they operate largely under the radar of municipalities.

In April, Wisdom Organics sued the city after its treasurer refused to accept the nonprofit’s application for a business tax certificate. According to court records, the collective grows medical marijuana outside of San Diego and applied for the license to operate as a delivery service in the city.

City Attorney Jan Goldsmith has brought dozens of lawsuits against medical marijuana dispensaries over the last year, arguing that they violate local zoning laws because the storefront operators are not allowed to operate anywhere in the city. That coupled with federal action has prompted the closure of scores of dispensaries — including U.S. Drug Enforcement Administration raids at dispensaries in Rolando, North Park, Pacific Beach, Kearny Mesa and elsewhere.

“Marijuana distribution is a crime under federal law,” Goldsmith said Tuesday. “The city of San Diego will not enable a federal crime. Those who want to decriminalize marijuana for medicinal purposes should speak with members of Congress about changing federal law but, in the meantime, they should obey the law.”

In San Diego, judges have ruled that building owners leasing to medical marijuana dispensaries can evict their tenants because collectives are illegal under the city’s zoning laws and that the city may restrict the location of medical marijuana dispensaries based on those laws.

Collectives have been in legal limbo since officials three years ago determined that they didn’t fit within any of the existing zones and therefore would not be issued a business license. The City Council approved an ordinance that outlined where dispensaries could operate, but that was repealed last summer after a successful referendum signature drive.

Last month, the state Supreme Court voted unanimously to review how cities and counties regulate medical marijuana dispensaries. Specifically, the court agreed to address whether municipalities can ban collectives despite the 1996 passage of Proposition 215.

A Los Angeles-based appellate court last year struck down Long Beach’s attempt to license pot stores, ruling the local ordinance conflicted with federal law. Another appellate court upheld Riverside’s right to close and prohibit dispensaries despite Proposition 215.

Since then, several cities — including Long Beach — have shuttered clubs or banned them from their boundaries. Other cities, such as San Francisco, suspended issuing permits because of the rulings.

Now that the Supreme Court has agreed to review the case, those appellate rulings are no longer valid.